RFRA at 20 years — Baptist Joint Committee remains faithful to legacy of ensuring freedom for all

Thirty years ago, two counselors working at an addiction treatment center in Douglas County, Oregon, were fired. The story of these two counselors would eventually lead to the passage of the Religious Freedom Restoration Act and spark debates about the limits and meaning of religious freedom that are as relevant now as ever.

The Baptist Joint Committee for Religious Liberty, a 78-year-old education and advocacy organization supported by numerous Baptist bodies, including the Cooperative Baptist Fellowship, as well as thousands of congregations and individuals, has been and remains at the forefront of these debates, providing a faithful witness on how to ensure religious freedom for all.

Alfred Smith, a Native American and member of the Klamath tribe of southern Oregon, gained a reputation over time as an effective alcohol counselor. Smith himself had battled alcoholism for many years. His work counseling fellow Native Americans struggling with addiction took him to Colorado and then later back to his home in Oregon.

Back in Oregon in the late 1970s, Smith embarked on a spiritual search and connected with the Native American Church, which uses peyote, a plant with hallucinogenic properties, in its rituals. From time to time, Smith used peyote during the rituals. Then in 1983, Smith’s curious co-worker Galen Black began to ask him questions about the substance and later took part in the sacramental ceremony.

When the treatment center learned of their peyote use, both men were fired. At the time, the federal government and more than 20 states permitted the use of this illegal substance in certain religious contexts. The state of Oregon did not though.

BJC Executive Director J. Brent Walker introduces guests at the 2013 Religious Liberty Council Luncheon at the CBF General Assembly in Greensboro, N.C.

Smith and Black proceeded to apply for unemployment compensation with the state. But, their claim was rejected on the grounds that the men were ineligible due to “job-related misconduct.” A lawsuit followed with Smith and Black arguing that this denial violated their religious freedom per the First Amendment. Their case eventually made its way to the U.S. Supreme Court, which ruled against the men on April 17, 1990.

Writing for the court’s majority, Justice Antonin Scalia held that government would no longer be required to demonstrate a “compelling state interest” to justify burdening the free-exercise rights of its citizens. “If prohibiting the exercise of religion…is…merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended,” Scalia wrote.

During the previous three decades, the Supreme Court had used the “compelling interest test” to decide religious liberty cases such as this one. With this ruling, the burden was no longer on the government to demonstrate an important reason or “compelling interest” to infringe on a person’s religious freedom.

The Supreme Court’s decision sparked outrage across the nation. James M. Dunn, executive director of the then-named Baptist Joint Committee on Public Affairs (BJC), described the ruling as an “outburst of judicial activism” and claimed that the court had “gutted the Free Exercise Clause from the First Amendment.”

The BJC did not protest alone. Opposition and alarm about the Smith decision were deep and wide. Led by General Counsel Oliver “Buzz” Thomas, the BJC helped bring together a large and extremely diverse coalition of religious and civil liberties organizations, and Thomas chaired the newly-formed Coalition for the Free Exercise of Religion.

The coalition drafted legislation to prevent the government, both federal and state, from substantially burdening a person’s
free-exercise rights unless the burden furthered a compelling interest and was the least restrictive means of advancing that interest.

This attempt to restore the “compelling interest test” faced several hurdles but was eventually passed by Congress. On Nov. 16, 1993, President Bill Clinton signed the Religious Freedom Restoration Act (RFRA) into law during a ceremony in the White House’s Rose Garden, where coalition members gathered, including Thomas, Dunn and then-BJC Associate General Counsel Brent Walker. Remembering the origins of RFRA, Walker, now the BJC’s executive director — a position he has held since 1999, recently hailed the 1993 law as “the most significant piece of religious liberty legislation of our generation.”

President Bill Clinton is joined by Vice President Al Gore and members of Congress on Nov. 16, 1993, as he signs the landmark Religious Freedom Restoration Act.

In the 20 years since the adoption of RFRA, the religious liberty road has been sometimes rough. RFRA faced an onslaught of legal challenges, and in 1997 the Supreme Court held in City of Boerne v. Flores that RFRA was unconstitutional as it applied to state laws. RFRA continued to apply to the federal government, however.

To celebrate the 20th anniversary of RFRA last year, the BJC organized a symposium at the Newseum in Washington, D.C. The November 7 event brought together the nation’s leading church-state experts, including key former coalition members, for a discussion on the history and future of RFRA.

While some former RFRA supporters now worry about its interaction with civil rights and health care laws (e.g. the high-profile case of Sebleius v. Hobby Lobby Stores, Inc., that the Supreme Court is soon to decide), the BJC continues to champion RFRA as a much-needed protection from governmental interference with the free exercise of religion.

“There will always be laws that serve a particular public interest that may be applied in ways that conflict with religion,” explained Holly Hollman, who has served as general counsel for the BJC since 2000. “Our country’s premium on religious liberty requires that we protect religious expression and have a just way to resolve those conflicts.”

“Without RFRA, there would be no remedy for laws that conflict with religious belief unless government targeted religion,” Walker added. “RFRA is particularly well-suited to negotiate conflict between the rights of conscience and the interest of those detrimentally affected by the accommodation of religion. RFRA does not pre-judge outcomes. It allows courts to balance the equities in a specific context — to lift burdens on the exercise of religion while sometimes setting boundaries in the interest of fairness to others.”

All living former BJC general counsels gathered at the opening event for the Center for Religious Liberty on October 1, 2012. From left to right: Oliver “Buzz” Thomas (General Counsel, 1985-1993), Brent Walker (1993-1999, Executive Director, 1999-present), Melissa Rogers (1999-2000), and Holly Hollman (2000-present). The BJC’s first general counsel John Baker, was named to the position in 1979 and served in that role until he passed away in 1985.

Hollman and Walker lament the damage that political divisions have done to the ability of diverse groups, like the BJC-led coalition that birthed RFRA, to work together for the sake of the common good as cooperation between such diverse groups has dwindled.

“The culture wars over the past 20 years made this result almost inevitable,” Walker said.

“A deepening partisanship on Capitol Hill and throughout the country makes it difficult to reach a consensus, even on issues like religious freedom. Skepticism and suspicion toward opponents seem more common than empathy and compromise,” Hollman noted. “We believe a threat to anyone’s religious freedom is a threat to everyone’s religious freedom, and groups who may not agree on specific religious tenets can work together with the common goal of protecting liberty for all.”

In 2016, the Baptist Joint Committee for Religious Liberty — the only religious agency in the United States devoted solely to religious liberty and church-state separation — will celebrate its 80th anniversary. From its early opposition to tax support for private and religious schools to repeated stands against government-prescribed prayer to its ongoing effort to preserve the free exercise of religion, the BJC remains committed to Religious Freedom Restoration Act.

“The Baptist Joint Committee is proud to have led the coalition that urged the passage of the Religious Freedom Restoration Act in 1993,” Walker said. “We continue to stand up for the constitutionality of RFRA and laud its value in protecting religious liberty in an increasingly contentious ‘culture war’ environment.”